“The Electability Conundrum”: Scalia’s Death Only Reinforces The Need For Democrats To Choose Their Nominee Wisely
The death of Antonin Scalia has brought home two truths about the presidential race to voters in both parties. First, there may be no more important issue in the campaign than the Supreme Court (which some of us have been saying for some time). And second, if that’s true, then there may be no more important criterion in picking your party’s nominee than who has the best chance of winning in November.
Unfortunately, electability is a difficult thing to predict, no matter how much you know about politics. During the 2008 primaries, for instance, many intelligent Democrats believed there was no way that the voting public would ever elect an African American with a name like “Barack Hussein Obama.” Four years before, many Democrats thought that John Kerry was the most electable Democrat because Republicans couldn’t possibly attack the patriotism of a war hero, especially with a couple of draft-dodgers like George W. Bush and Dick Cheney at the top of their ticket. Neither of those assessments turned out to be correct.
Nevertheless, it’s an impossible question for partisans to ignore, given the stakes of the election. And just how high are they? Someone (usually someone running for president) will always say “This is the most important election of my lifetime,” and it’s easy to dismiss. After all, no matter what happens, the republic will survive. If you’re a Democrat, you can console yourself with the fact that it survived Ronald Reagan and George W. Bush, as much damage as they might have done; if you’re a Republican you can say the same about Bill Clinton and Barack Obama.
Nevertheless, there are some reasons why this election could be particularly consequential, particularly for Democrats. The first is the Supreme Court, and Scalia’s passing is only part of that story. When the next president is sworn in, Ruth Bader Ginsburg will be 83, Anthony Kennedy will be 80, and Stephen Breyer will be 80. What if Republicans succeed in keeping President Obama from seating a replacement, then a Republican is elected, and some or all of those three fall ill or retire? You could have a Court made up of seven relatively young conservative justices and only two liberals, Sonia Sotomayor and Elena Kagan. The days of liberals losing cases by a 5-4 margin would be but a happy memory, and the overturning of Roe v. Wade, the end of affirmative action, and the crushing of labor union rights would be only the beginning of a judicial scorched-earth campaign that would not only lay waste to rights liberals hold dear, but would keep doing so for decades to come.
And then there’s the matter of what a Republican president would be able to accomplish through legislation. If the GOP nominee wins in November, it will almost certainly also mean that Republicans have held on to the House and the Senate. That president might or not not be a radical conservative, though Donald Trump looks like the only contender with a chance who couldn’t be described that way. But Congress certainly will be radical. The Republican Party has been moving sharply to the right in recent years, and with unified control for the first time in a decade, it’s safe to say they will pretty much go nuts. Repealing the Affordable Care Act, slashing upper-income taxes, gutting the safety net, rolling back environmental regulations, passing federal restrictions on abortion—if it’s in any Republican’s fantasies, it’ll be able to pass through both houses and get signed by the president. And don’t think Democrats having the filibuster will stop that train; given the respect Republicans have shown for norms and traditions, do you think they’ll let that stand in their way?
So if you think electability ought to be part of your calculation, what do you need to consider? The Democratic primary makes it a little easier because there are only two candidates, but it’s still complicated. Here are the variables to consider:
- The reward to be gained from a Bernie Sanders presidency
- The reward to be gained from a Hillary Clinton presidency
- The chances of Sanders winning in November if he’s the nominee
- The chances of Clinton winning if she’s the nominee
- The consequences of a Republican victory in November
That’s not to mention how each Democrat would match up against any given Republican, which introduces another dimension of complexity. But here’s the basic calculation you have to make: Figure out whether, for your preferences, (1) is larger than (2) or vice-versa, and by how much; then figure out whether (3) or (4) is larger, and by how much; then weigh both of those figures against (5).
For instance, you might decide that Bernie Sanders’s presidency would be superior to Hillary Clinton’s, but Clinton has a higher chance of winning in November, and since a Republican presidency would be so dreadful, you’ll support Clinton even though you like Sanders better. Or you might decide that a Sanders presidency would be so good that even if Clinton might have a slightly better chance in November, it’s worth some measure of risk in nominating Sanders because the reward of him winning is so high.
The truth, of course, is that because we aren’t rational people we constantly construct post-hoc justifications for the choices we make. In this case, that means we’ll convince ourselves that whichever candidate we prefer is also the more electable one. While it might seem logical that Clinton has a higher chance of winning a general election than Sanders, I’ve yet to encounter a Sanders supporter who actually thinks so. They say that Clinton has her own electability problems (undoubtedly true), and that Sanders will bring in so many new voters that it will overcome the effect of the attacks Republicans will launch on him for his leftist views. Clinton supporters, on the other hand, find this argument laughable; they’ll tell you that Republicans will positively disembowel Sanders, and by the time they’re done with him he’ll seem like he’s too much of an extremist to get elected to the Burlington City Council.
I’ve also found that Sanders supporters are more likely to minimize the negative consequences of a Republican presidency. That might be because they don’t see as much of a difference between Clinton and the Republicans, but it’s also because they’re focused on the first variable, the potential rewards of a Sanders presidency. Clinton supporters, on the other hand, have no sweeping expectations from their candidate; for them, staving off disaster is more than enough reason to support her.
Even if your heart goes aflutter at Sanders’s mention of things like single-payer health care and free public college tuition, you’d have to grant that achieving those goals is anything but guaranteed even if he wins the White House. And most of what he would do doesn’t differ from what Clinton would do. That’s particularly true of the Supreme Court: Any Democratic president who had a chance to name a new justice would be choosing from the same pool of liberal jurists now serving in federal appeals courts or perhaps a few state supreme courts.
But even if you find the substantive differences between Clinton and Sanders to be enormous, it’s hard to see them as actually being bigger than the difference between them on one hand and the tsunami of change that will occur if a Republican is elected on the other. Which leaves Democratic voters with no choice but think hard about which candidate is more electable—even if there are no perfect answers to the question.
By: Paul Waldman, Senior Writer, The American Prospect, February 15, 2016
“History Isn’t On Their Side – And Neither Is The Calendar”: Justice Kennedy’s Confirmation Debunks Key GOP Talking Point
Soon after Supreme Court Justice Antonin Scalia’s death was announced, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) said in a statement, “The fact of the matter is that it’s been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year.”
The fact of the matter is the chairman of the Senate Judiciary Committee should have done his homework before getting this wrong.
The “80 years” talking point spread like wildfire in Republican circles – it was repeated by Ted Cruz and Marco Rubio during Saturday night’s debate – to the point that the GOP has convinced itself that at no point in the modern era has the Senate confirmed a Supreme Court justice in an election year.
About 14 justices were confirmed in election years, and perhaps the most pertinent example is Justice Anthony Kennedy. As the Washington Post’s E.J. Dionne noted this morning:
A Senate controlled by Democrats confirmed President Reagan’s nomination of Anthony Kennedy on a 97 to 0 vote in February 1988, which happened to be an election year.
Yes, in Reagan’s eighth year, nine months before Election Day 1988, the Democratic-led Senate confirmed Kennedy with ease.
Chuck Grassley, who’d already been in the Senate for seven years at that point, delivered remarks on Feb. 13, 1988 – exactly 28 years to the day before Scalia’s passing – urging the Senate to confirm Kennedy during that election year.
Grassley voted for Kennedy’s nomination on the Senate floor soon after. So too did a young man by the name of Mitch McConnell, a Republican senator from Kentucky in his first term.
At the time, Ronald Reagan, stung by two failed nominees to the high court (Douglas Ginsburg and Robert Bork), said at the time that if Senate Democrats played election-year games by stalling on Kennedy’s nomination in 1988, the “American people will know what’s up.”
And on this, he was correct.
But we know, of course, that Democrats didn’t bother. There was a vacancy on the Supreme Court; the White House nominated a qualified and credible jurist; the Senate considered his qualifications; and he was confirmed in an election year without much of a fuss – even though the Senate was controlled by Democrats and Reagan was a Republican president.
It’s true that Kennedy was first nominated in late 1987, but the point is the right is now arguing that election-year confirmation votes have no modern precedent. Or as Grassley put it, “[I]t’s been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year.”
The Kennedy example proves otherwise.
If this were December 2016, Senate Republicans would be in a far better position to balk. But it’s mid-February, and the Senate’s to-do list for the next several months is quite thin. History isn’t on their side – and neither is the calendar.
By: Steve Benen, The Maddow Blog, February 15, 2016
“The GOP’s Worst Nightmare SCOTUS Nominee”: Let America Watch Republicans Tie Themselves In Knots
Here’s a name you need to get to know: Tino Cuellar. Who is Tino Cuellar? The potential Supreme Court nominee who could tie the Republican Party in the most Gordian knots of any of them, and who could thereby alter the presidential race dramatically as well.
Yes, yes; Barack Obama should choose the person best qualified for the job with whom he is most intellectually comfortable. But should that person be Mariano Florentino Cuellar, there could be plenty of benefits aside from having a brilliant, young, Latino person on the Court.
Cuellar, 43, is an associate justice on California’s State Supreme Court. He was born in Mexico. He is a naturalized U.S. citizen. He grew up on the border, and his family moved to California’s Imperial Valley when he was a teenager. He was smart and decided he wanted an education. He got one, all right. Get this resume: undergrad, Harvard; law school, Yale; master’s and doctoral degrees, Stanford.
Here’s his full Stanford bio, so you can give it a gander, but it’s incredibly impressive. He worked at the White House, he worked in the Treasury Department, he taught law at Stanford. “He’s a brilliant guy,” says Samuel Bagenstos, a law professor at the University of Michigan who knows Cuellar. “He’d be the justice with the most wide-ranging intellect since William O. Douglas.” (Bagenstos asked me to note that he is backing no single candidate and thinks the president has many good choices.)
He was elevated to California’s high court by a unanimous bipartisan vote, and given the highest possible rating by the California Bar Association. He is married to a U.S. District Judge, Lucy Koh, who is a formidable intellect in her own right—the Senate confirmed her unanimously, 90-0, when Obama nominated her to that position in 2010. And they have two kids.
Now assuming there’s no skeleton in the old closet, suppose Obama sends Cuellar up to be nominated. Oh what fun it shall be.
We know almost to a certainty that the Republicans will oppose anyone. Mitch McConnell said it, all the presidential candidates said it, everyone says it, and everyone knows it. For a Republican senator to vote for Barack Obama’s replacement of the great Antonin Scalia would be as sure a form of instant political suicide as one can imagine in this country. There is just no way. And it may not even get to a vote. They’ll just sit on it, not even scheduling confirmation hearings, saying the American people deserve a voice in this nomination.
And Obama will say, as I noted yesterday, that I’m still the president and am going to be president for a while yet, and we have no modern precedent for letting the Court have an even number of members.
And then Americans will learn about Cuellar’s life story. The fancy universities, the four degrees, the testimonials to his intellect that will stream in. And of course he’d be not the first Latino, but still, the second out of nine, and the first Mexican-American (Sonia Sotomayor is Puerto Rican), who constitute by far the largest demographic group among American Latinos.
This is Reince Priebus’s perfect nightmare, is it not? Let America watch as old white-guy senator after old white-guy senator goes on TV to say “Oh, it’s nothing against Mr. Cuellar, it’s all about Obama, and the people’s voice.” And let America watch as nominee Donald Trump says the same thing. Or even Marco Rubio or Ted Cruz—in some ways that’s even worse for the GOP, to have a Cuban-American (or Cuban-Canadian-American) stand up and say this Mexican-American doesn’t belong on the Supreme Court. There are around 33 million Mexican-Americans in the country—and around 2 million Cuban Americans. How well do you think the math on that works for the GOP?
So Priebus, who in his silly little autopsy in 2013 insisted that Republicans were going to be the inclusive party and who still has the gall to talk like that today, even as his party’s voters convert a howling xenophobe into their front-runner, would have quite a situation on his hands. And we get to Election Day, and poor Cuellar has been sitting there for seven months after nomination without even having had the courtesy of a committee hearing.
What percentage of the Latino vote is the Republican nominee going to get then, if the party has precipitated a veritable constitutional crisis by refusing to perform its constitutional role and refusing to vote for this obviously qualified man? Maybe 12, 15, 18 tops? Tops. Remember, Romney got 27 percent, and it was considered a disaster. If the GOP nominee gets 18, winning Florida is an impossibility. And if winning Florida is an impossibility, then winning the White House is, too. Even Arizona is probably unwinnable for the Republicans with a number like that.
Now obviously, that is, as I said, Priebus’s worst nightmare. Things could be different. And again, I don’t think Obama should nominate Cuellar for these political reasons. But if he decided to nominate him, boy would it be great to see those people squirm.
By: Michael Tomasky, The Daily Beast, February 15, 2016
“Obama Rejects The Rejectionists”: Scalia’s Passing Starts A Court Fight For The Ages
In most presidential elections, Supreme Court nominations are a major issue for elites and a substantial concern for significant parts of the conservative movement. Other voters usually see the future makeup of the court as a side matter, or not essential to their decisions at all.
Justice Antonin Scalia’s death on Saturday will change this.
The issue of conservative judicial activism had already begun to take hold among liberals because of a series of fiercely ideological and precedent-shattering 5-to-4 decisions.
You read that right: After decades during which conservatives complained about “liberal judicial activism,” it is now conservatives who are unabashed in undermining progressive legislation enacted by the nation’s elected branches. Scalia will be remembered fondly on the right as the brilliant exponent of the theory of “originalism” that provided a rationale — or, in many cases, a rationalization — for decisions that usually fit conservative ideological preferences.
In 2010, Citizens United v. FEC rewrote decades of precedent on Congress’ power to regulate how campaigns are financed, facilitating a flood of money into elections from a small number of very wealthy Americans. Three years later, Shelby County v. Holder ripped the heart out of the federal government’s enforcement power in the Voting Rights Act. Last week, conservatives on the court halted the implementation of President Obama’s Clean Power Plan, his central initiative on climate change.
This is merely a partial list. The court’s conservatives have also regularly undercut the power of unions and the ability of citizens to wage legal battles against corporations.
Such decisions already had the potential of broadening the range of progressive constituencies invested in making the court a major election issue, including political reformers, African Americans, environmentalists and organized labor.
But Scalia’s death means that Obama or his successor — if that successor is a Democrat — could overturn the current conservative majority on the court, which could lead it to revisit many of the most troubling decisions of recent years.
And Republicans did themselves no favors in the coming argument by moving in a hard political direction even before most of the tributes to Scalia had been published — and even before the president had actually picked someone: Senate Majority Leader Mitch McConnell (R-Ky.) proclaimed that no Obama nominee would be considered, period.
“The American people should have a voice in the selection of their next Supreme Court justice,” McConnell said. “Therefore, this vacancy should not be filled until we have a new president.”
Republicans claimed precedent for ignoring court appointees from presidents on their way out the door. During Saturday night’s debate in South Carolina, Marco Rubio said that “it has been over 80 years since a lame-duck president has appointed a Supreme Court justice.” Ted Cruz made a similar point.
Well. A Senate controlled by Democrats confirmed President Reagan’s nomination of Anthony Kennedy on a 97-0 vote in February 1988, which happened to be an election year. By what definition was Reagan not a lame duck when he put Kennedy forward on Nov. 11, 1987?
Obama rejected the rejectionists. He said Saturday he would name a new justice and that there would be “plenty of time . . . for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote.”
My hunch is that Obama will try to put the Republicans’ obstructionism in sharp relief by offering a nominee who has won support and praise from GOP senators in the past. Three potential candidates who fit these criteria and won immediate and widespread mention were Merrick Garland and Sri Srinivasan, both judges on the U.S. Court of Appeals for the District of Columbia, and Jane Kelly, a judge on the 8th Circuit. (I should note that Garland is a dear friend of long standing.)
Whatever choice Obama makes, he will try to make it as hard as possible for Republican senators — especially those struggling for reelection this year in blue or purple states — to claim that he had picked an ideologue. Obama could also argue he had deferred to the Republicans’ Senate majority by offering a candidate whom many of them had supported in the past.
An extended court fight would allow progressives, once and for all, to make clear it is their conservative foes now using judicial power most aggressively. The partisan outcome of this year’s election just became far more important. This fall, Americans will not just be picking a new chief executive. They will be setting the course of the court of last resort for a generation.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, February 14, 2016
“Kakistocracy”: Government By The Worst Politicians Who Say They Love America, But Hate The American Government
We can see a troubling future looming for America in two seemingly unrelated events — the water crisis in Flint and the Republican presidential primaries.
Both suggest that America is moving away from the high ideals of President Kennedy’s inaugural address — “Ask not what your country do for you, ask what you can do for your country.” Instead we see politicians who say they love America, but hate the American government.
There is a word to describe the kind of government Michigan has and America is at risk of developing. It’s called kakistocracy.
It means government by the worst men, from the ancient Greek words kákistos, meaning worst, and kratia, meaning to rule.
Think of Sheriff Joe Arpaio of Arizona, Governor Paul LePage of Maine and others notorious for abuse of power and utter contempt for those who disagree with them.
We can see one of the worst in Michigan, where Governor Rick Snyder persuaded the legislature to grant him imperial powers to take over local elected governments. Soon a whole city was poisoned.
Snyder, like all leaders seeking to replace self-governance with dictatorship, claims that he acted solely in the best interests of the people. Snyder’s administration did not just fail to forcefully correct the evil it had wrought; it actively tried to hide the awful truth, another badge of dictators.
When the official secret was finally exposed, Snyder showed himself to be at best a slothful minimalist in fixing his mess. He also made what he claimed as a full disclosure, while withholding the most important documents about his toxic administration.
On television you may have seen National Guard troops, called up by Snyder, handing out bottled water. It was a cynical PR stunt: Seven Guardsmen at one location in a city of 99,000 people.
An accountant by profession, who calls himself a tough nerd, Snyder fields mass phone calls rather than take charge in Flint, the once prosperous home of Buick made famous in Michael Moore’s 1989 documentary Roger & Me.
Snyder tries to shift blame to people he appointed. And he remains focused on corporate tax favors, not the people of Flint, a city with a slight black majority.
To those who insist racism is in the past, Snyder’s behavior shows that racialized politics endure.
Bad as poisoning an entire city is, that’s nothing compared to what the Republican candidates for the White House propose – more war, more tax cuts for the rich, massive surveillance and a host of other policies fit not for a land of liberty, but a police state.
Think about Chris Christie, the New Jersey fabulist who misleads about his appointment as U.S. Attorney for the Garden State and who mocks people who say he should be doing more to address shore flooding since Hurricane Sandy in 2012. There’s his false justification for stopping a replacement for the century-old rail tunnel between his state and Manhattan, and his aggressively hiding of the facts about the dangerous George Washington bridge lane closures by his aides.
But the monstrous wrongdoing of Snyder and the incompetency and mendaciousness of Christie pale next to some other GOP presidential wannabes. Many of them love war, especially now that, having avoided military service in their youth, they’re too old to face enemy fire on the battlefield.
Senator Ted Cruz wants to “carpet bomb ISIS into oblivion” until the sand “glows in the dark.” Asked about the legality of this, Cruz doubled down during the Fox News debate last month. The Texas senator thinks this is a brilliant military strategy, even though actual experts think it is a terrible idea and so does America’s top general in Iraq.
By the way, indiscriminately bombing civilians is a war crime.
Donald Trump favors the policies of Mexican drug cartels and the most vicious Mafia bosses. He doesn’t just want to wipe out those seeking to create the Islamic State in Syria and the Levant. Trump vows to kill their families, too. Challenged by a college student on this, Trump too doubled down.
It was fellow candidate-at-the-time Rand Paul, the libertarian senator from Kentucky, who pointed out that killing the families of combatants is a war crime.
Of course killing families would only stir hatred of America and lead to more violence. Sending Americans once again into Middle East combat would only enrage more young Muslim men, which is why I earlier described Trump as ISIS’ chief recruitment officer.
Trump would also break up families by arresting 11 million or so immigrants who are here illegally; bar any Muslim from entering the country; spy on mosques; impose tariffs; punish corporations that make investments he dislikes, among his long list of promised extra-Constitutional actions.
Asked about what laws authorize his proposals, Trump claims unnamed experts are on his side.
Trump’s proposal is not so much for a term or two as president, but for a Trump dictatorship. (see Snyder, Rick; imperial powers).
Then there’s the vile language Trump uses, claiming variously that he was just repeating what someone else said or that he will not be forced into political correctness. Evidently Trump’s mother failed at teaching him any manners. The Presbyterian Church, which Trump recently made a public show of attending, also failed at teaching him about asking God for forgiveness, about the sacraments, the names of Biblical chapters, and the last five of the Ten Commandments.
Except for the now-departed Rand Paul, the Republican presidential candidates talk easily of war, almost as if they were proposing a picnic. And they all insist we need a bigger military, even though more than 40 percent of all military spending worldwide is American.
ISIS is a pipsqueak threat, nothing like the Soviet Union during the Cold War or the Axis powers of World War II. Yet the Republicans encourage us to live in fear. ISIS is failing and can do no more than harry us, but Trump, Cruz, and some of the other candidates would have us give up our liberties and grant them powers that the framers of our Constitution explicitly denied the executive branch.
Other Republicans have shown their lack of knowledge to be almost Trumpian in its vacuity, especially Senator Marco Rubio and Dr. Ben Carson. The one woman who was running on the GOP side, Carly Fiorina, has a track record in business (and veracity) that deserves boos, not applause.
On top of this the Republicans, everywhere, continue marketing the economic snake oil that what ails our economy is that the rich do not have enough and are in dire need of more tax cuts.
We should not be surprised that in so many places our governments are under the control of men and women who are careless, destructive, incompetent, and passive-aggressive.
Since Ronald Reagan declared in his 1981 inaugural address “government is not the solution to our problem, government is the problem” we have seen more and more people who hate government going into government.
A government run by people who believe it is bad will, of course, make it fail. They are dedicated not to making our government work for us, but to making their own worst beliefs about government come true. We see this at every level from Uncle Sam down to the local school boards that try to replace biological science with religious beliefs.
Big business has learned to take advantage of government run by those who despite it. With cronies in high places big companies find it much easier to mine gold from the Treasury than the market, the subject of my book Free Lunch.
Our Constitution makes the federal government ours. We choose our leaders. We decide what powers they can exercise. And if we elect people who are nasty, brutish, or megalomaniacal we have no one to blame but ourselves.
That anyone in America would think that any of the Republican candidates, save Governor John Kasich of Ohio, is competent to hold office shows how easily politics can drift from ideals to the basest attitudes. (More than three dozen progressive members of Congress told me this month that while they don’t agree with Kasich on most issues, he is unquestionably competent.)
The Founders warned us to beware of those who lust for power.
Now we see on full display those who lust not just for the authority our Constitution conveys on the Office of President, but who seek to do as they please without regard for the checks and balances of our Constitution, without regard for thoughtful strategies in dealing with foreign powers and would-be powers, and without regard for human life, not just among the wives and children of ISIS combatants, but among those American citizens who are poor, black, Latino, Muslim — or happen to live in Flint.
Kakistocracy. Use that word. Get others talking about what it means.
By: David Cay Johnston, The National Memo, February 13, 2016
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